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Court of AppealPartially AllowedCivil Appeal No. 346 of 2013· [2017] KECA 724 (KLR)

Brookside Studios Limited & another v A A Kawir Transporters Limited & 4 others [2017] KECA 724 (KLR)

Court of Appeal of Kenya
3 March 2017
4,521 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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Kenya's Court of Appeal ordered disputed land frozen and protected from sale or transfer until a court finally decides who owns it.

What this practically means

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Executive summary

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This is a consolidated judgment of the Court of Appeal (Visram, Koome and J. Mohammed, JJ.A) in two interlocutory appeals by Brookside Studios Limited and Yellow Horse Inns Limited, registered proprietors of adjoining parcels of land in Nairobi, whose applications for temporary injunctive relief in ELC Nos. 746 and 747 of 2011 were dismissed by Gitumbi, J on 20th September 2013. The appellants alleged that the Commissioner of Lands colluded with the 1st respondent to issue parallel grants over their registered properties. The trial Judge declined injunctive relief because ownership of the suit premises was under intense contention between multiple claimants and she could not determine on a prima facie basis who the legitimate owner was. The Court of Appeal, reaffirming the limited grounds for interfering with discretionary decisions under United India Insurance v East African Underwriters and the sequential three-stage Giella test as restated in Nguruman, held that the learned Judge erred by failing to interrogate all three injunction conditions after finding that ownership could not be determined at the interlocutory stage, and by failing to take into account relevant considerations, including the Court's prior protective injunctive orders in Civil Applications Nai 280 and 281 of 2010 and the claim that the 1st respondent intended to sell the suit properties. Allowing both appeals, the Court set aside the rulings and orders of 20th September 2013, granted a temporary injunction restraining the respondents from alienating, entering into, subdividing, taking possession of or interfering with the suit properties or registering any grant or document in favour of the 1st respondent pending hearing of the substantive suits, directed that the suits be heard in the High Court by any Judge other than Gitumbi, J on a priority basis, and awarded costs of the appeals to the appellants.

Key legal issues

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01

Interference with discretionary decisions of the trial court

Holding

The trial Judge's discretion was not properly exercised because she failed to take into consideration relevant factors she should have, entitling the appellate court to interfere.

Reasoning

The court applied the settled framework from United India Insurance Co. Ltd v East African Underwriters (Kenya) Ltd, which limits appellate interference with discretionary decisions to established categories of error. The Judge, having found that ownership was hotly contested and could not be determined at the interlocutory stage, declined the injunction without interrogating the remaining Giella conditions or the prior protective orders and the alleged intention to sell the suit properties, thereby failing to consider relevant material.

p. 5
02

Sequential application of the Giella triple test

Holding

The Judge erred by failing to interrogate all three Giella considerations after finding the legitimate owners could not be determined at the interlocutory stage.

Reasoning

The court reiterated that the conditions for an interlocutory injunction — prima facie case, irreparable injury, and balance of convenience — are separate, distinct and logical hurdles to be surmounted sequentially. Where a judge finds that ownership is contested and cannot be determined on the affidavits, that finding does not dispose of the application; the judge should go on to consider the remaining ingredients and whether they tilt the balance towards a preservatory order, including the risk of the property being disposed of.

p. 5
03

Purpose of an interlocutory injunction

Holding

An injunction serves to conserve or preserve the subject matter or property pending determination of the suit concerning it.

Reasoning

Invoking its earlier decision in George Orango Orago v George Liewa Jagalo, the court emphasised the preservatory function of interlocutory injunctions. Where several claimants hotly contest ownership and possession, the risk of ownership falling prematurely into the hands of a party who may not ultimately be adjudged the rightful owner justifies a preservatory order pending trial.

p. 6
04

Meaning of a prima facie case with a probability of success

Holding

A prima facie case with a probability of success does not mean a case that must eventually succeed; the court gauges only the strength of the plaintiff's case on the affidavits, not the merits of the main suit.

Reasoning

Drawing on Habib Bank AG Zurich v Eugene Marion Yakub and National Bank of Kenya v Duncan Owour Shakali, the court reaffirmed that at the interlocutory stage the court gauges the strength of the plaintiff's case rather than adjudging the main suit, and questions of contested ownership are not finally determined on affidavits.

p. 4

Legal principles established

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  • An appellate court will not interfere with a trial judge's exercise of discretion on an injunction application unless the judge misdirected himself in law, misapprehended the facts, took into account considerations he should not have, failed to take into account considerations he should have, or his decision is plainly wrong.
  • The three conditions for an interlocutory injunction must be applied as separate, distinct and logical hurdles which the applicant must surmount sequentially; a finding that a prima facie case is not established does not end the enquiry if the judge finds the ownership contested, and the judge must still consider the remaining conditions.
  • In an interlocutory appeal where the substantive suit is pending, an appellate court must not make determinative views on the issues in dispute so as to avoid prejudging or prejudicing the pending suit.

Court orders

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  1. 1.The rulings and orders dated 20th September, 2013 in respect of ELC Nos. 746 and 747 of 2011 be and are hereby set aside
  2. 2.A temporary injunction do issue to restrain the respondents and/or their agents from alienating, entering into, subdividing, taking possession and/or interfering with the suit properties or registering a grant/title or any other document in favour of the 1st respondent or any other person pending the hearing and determination of the substantive suits, in the High Court
  3. 3.The substantive suits be heard in the High Court by any Judge other than Gitumbi, J., on priority basis
  4. 4.Costs of the appeals to the appellants
On appeal from
High Court of Kenya at Nairobi (Environment and Land Court)
ELC Nos. 746 & 747 of 2011
Jurisdiction invoked
Appellate jurisdiction of the Court of Appeal over appeals from the High Court (not expressly invoked in the judgment; the appeals are from rulings of the ELC).

Key timeline

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Practical implications

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Frequently asked questions

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Later judgments citing this (1)

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Judgments in the corpus that rely on this one. Where the Court said how it treated the authority, that is shown.

Cite this brief

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Cite this brief

Caselaw, "Brookside Studios Limited & another v A A Kawir Transporters Limited & 4 others [2017] KECA 724 (KLR)", Case Analysis (2017). Civil Appeal No. 346 of 2013. Source: https://new.kenyalaw.org/akn/ke/judgment/keca/2017/724/eng@2017-03-03

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.